Argued
December 20, 2017
Procedural
History
Appeal
from the decision of the defendant suspending the
plaintiff's motor vehicle operator's license, brought
to the Superior Court in the judicial district of
Ansonia-Milford and transferred to the judicial district of
New Britain, where the case was tried to the court,
Schuman, J.; judgment dismissing the appeal
in part and remanding for the resolution of a disputed
factual issue, and the plaintiff appealed to the Appellate
Court, Gruendel and Prescott, Js.,
with Bear, J., dissenting, which reversed
the trial court's judgment and remanded the case with
direction to render judgment sustaining the plaintiff's
appeal, and the defendant, on the granting of certification,
appealed to this court. Reversed; judgment
directed.
Drew
S. Graham, assistant attorney general, with whom, on the
brief, was George Jepsen, former attorney general, for the
appellant (defendant).
Chet
L. Jackson, for the appellee (plaintiff).
Palmer, McDonald, Robinson, Mullins, Kahn and Vertefeuille,
Js. [*]
OPINION
PALMER, J.
Under
General Statutes § 14-227b (c), [1]anytime someone is arrested
for operating a motor vehicle while under the influence of
drugs or intoxicating liquor and refuses to submit to or
fails a blood, breath or urine test, the arresting officer
must, among other things, prepare a report of the incident
for the Department of Motor Vehicles (department), and,
pursuant to § 14-227b-19 of the Regulations of
Connecticut State Agencies, [2] that report is admissible at a
hearing to suspend an operator's license conducted in
accordance with § 14-227b (g), [3] as long as it conforms to
the requirements of § 14-227b (c). The defendant, the
Commissioner of Motor Vehicles (commissioner), suspended the
operator's license of the plaintiff, Angel Huang Do, for
ninety days following a hearing at which the hearing officer
relied on such a report, which consisted of an A-44 form,
[4] a
four page police investigation report, and the results of the
plaintiff's breath analysis tests. The plaintiff appealed
to the Superior Court from the decision of the commissioner,
claiming, inter alia, that this report, which had been
admitted into evidence by the hearing officer as a single
exhibit, [5] was unreliable, even though it complied
with § 14-227b (c), due to certain inconsistencies and
errors contained therein. The plaintiff asserted, therefore,
that the hearing officer had abused his discretion by
admitting the exhibit into evidence. The trial court rejected
the plaintiff's claim but remanded the case to the
hearing officer for an articulation of the type of vehicle
the plaintiff was driving at the time of her arrest. The
plaintiff appealed from the trial court's judgment to the
Appellate Court which, in a two to one decision, reversed,
concluding that the inconsistencies and errors in the exhibit
rendered it so unreliable that its admission violated
principles of fundamental fairness. See Do v.
Commissioner of Motor Vehicles, 164 Conn.App. 616,
618-19, 138 A.3d 359 (2016). Because there was no other
evidence in the record to support the hearing officer's
findings, the Appellate Court sustained the plaintiff's
appeal. Id., 619. We granted the commissioner's
petition for certification to appeal, limited to the issue of
whether the Appellate Court properly determined that
principles of fundamental fairness required the preclusion of
the exhibit as unreliable even though it complied with §
14-227b (c). See Do v. Commissioner of Motor
Vehicles, 322 Conn. 901, 138 A.3d 931 (2016). Because we
agree with the commissioner that the hearing officer did not
abuse his discretion in admitting and relying on the exhibit,
we reverse the judgment of the Appellate Court.[6]
The
record reveals the following facts and procedural history. On
April 24, 2014, at approximately midnight, desk personnel
notified State Trooper Troy M. Biggs that a 911 caller had
described a white Mercedes-Benz driving erratically on Route
63 near Round Hill Road in the town of Bethany. Shortly
thereafter, Biggs spotted the Mercedes-Benz traveling
northbound on Route 63 and proceeded to follow it. After
Biggs observed the vehicle swerving and crossing the center
line, he activated his emergency lights and pulled the driver
over. Biggs identified the plaintiff as the driver of the
vehicle from her Connecticut motor vehicle operator's
license. While questioning the plaintiff, Biggs detected a
strong odor of alcohol on her breath and inside the car. The
plaintiff also admitted to having consumed two alcoholic
beverages prior to leaving her home.
On the
basis of this information, Biggs asked the plaintiff to exit
the vehicle and to perform three standardized field sobriety
tests, all of which the plaintiff failed.[7] At 12:30 a.m.,
Biggs placed the plaintiff under arrest for operating a motor
vehicle under the influence of intoxicating liquor or drugs
and transported her to the Bethany state police barracks,
where she was advised of her Miranda[8] rights. She then
agreed to submit to two breath analysis tests, the results of
which indicated a blood alcohol content of 0.1184 and 0.1186
percent, respectively. The plaintiff subsequently was
formally charged with operating a motor vehicle under the
influence of intoxicating liquor or drugs in violation of
General Statutes (Supp. 2014) § 14-227a
(a).[9]
On
April 26, 2014, in accordance with § 14-227b (c), Biggs
transmitted a copy of the exhibit, which, as we previously
indicated, consisted of an A-44 form, a four page police
investigation report, and the results of the plaintiff's
breath analysis tests, to the department. Each page of the
exhibit was subscribed and sworn to electronically by Biggs
under penalty of false statement. Biggs' supervising
officer, Ryan M. Hennessey, administered an oath to Biggs and
signed the exhibit as well.
On May
14, 2014, the commissioner notified the plaintiff that her
license was being suspended for a period of ninety days. See
General Statutes § 14-227b (e) (1).[10]The plaintiff
availed herself of her right to contest the suspension at a
hearing before an administrative hearing officer designated
by the commissioner. Under § 14-227b (g), [11] such hearings
are strictly ‘‘limited to a determination of the
following issues: (1) Did the police officer have probable
cause to arrest the person for operating a motor vehicle
while under the influence of intoxicating liquor or any drug
or both; (2) was such person placed under arrest; (3) did
such person . . . submit to [a] test or analysis, commenced
within two hours of the time of operation, [which] . . .
indicated that such person had an elevated blood alcohol
content; and (4) was such person operating the motor
vehicle.'' If the hearing officer finds affirmatively
on all four issues, the hearing officer must uphold the
commissioner's suspension of the person's license.
See General Statutes § 14-227b (h).
Prior
to the hearing, the commissioner notified the plaintiff that
the exhibit would be offered in evidence pursuant to §
14-227b (c). At the hearing, the plaintiff objected to the
admission of the exhibit on the ground that it was unreliable
due to the following internal discrepancies: (1) the A-44
form states that, at the time of her arrest, the plaintiff
was driving a 2007 Audi A4 with Massachusetts license plates
whereas the investigation report states that the plaintiff
was driving a 2006 Mercedes-Benz S28 with Connecticut license
plates; (2) after Biggs had subscribed and sworn to the
information contained in the A-44 form, Biggs'
supervising officer, Hennessey, altered the first page of
that form by crossing out ‘‘04/23/2014''
as the date of the incident and writing in
‘‘04/24/14'';[12] (3) Hennessy also crossed
out the name ‘‘Helt, David'' as a person
who witnessed the plaintiff's refusal to perform a breath
analysis test; and (4) page two of the investigation report,
in the prearrest screening section, states that the plaintiff
informed Biggs that she was wearing contact lenses whereas
the summary of the plaintiff's horizontal gaze nystagmus
test results in the same report states that the plaintiff
performed that test ‘‘with and without her
glasses on.'' On the basis of these alleged
discrepancies, the plaintiff argued that the exhibit did not
meet the admissibility requirements of § 14-227b (c)
because it could not be determined from the exhibit which
vehicle the plaintiff was driving on the night of the
incident and because the exhibit was not properly subscribed
and sworn to because of the alterations made by Hennessey. In
response, the department argued that the discrepancies
identified by the plaintiff were mere scrivener's errors
that went solely to the weight to be ascribed to the exhibit
and not to its admissibility. The hearing officer agreed with
the department and admitted the exhibit. The hearing officer
advised the plaintiff, however, that he would take into
account her arguments regarding the several errors and
discrepancies in the exhibit in deciding whether the
commissioner had satisfied each of the four requirements
specified in § 14-227b (g) for suspending the
plaintiff's operator's license. The plaintiff did not
testify or otherwise present any evidence at the hearing.
On May
30, 2014, the hearing officer issued the following findings:
(1) ‘‘The police officer had probable cause to
arrest the [plaintiff] for a violation specified in [§]
14-227b of the . . . General Statutes''; (2)
‘‘[t]he [plaintiff] was placed under
arrest''; (3) ‘‘[t]he [plaintiff]
submitted to the test or analysis and the results indicated a
[blood alcohol content] of .08 [percent] or more'';
and (4) ‘‘[the plaintiff] was operating the motor
vehicle.'' Consistent with these findings, the
commissioner ordered the suspension of the plaintiff's
license for a period of ninety days.
The
plaintiff thereafter filed a petition for reconsideration in
which she argued that the hearing officer could not properly
have found affirmatively on the fourth issue-namely, that the
plaintiff was operating the motor vehicle-because the exhibit
indicated that the plaintiff was driving two different
vehicles at the time of the incident. The plaintiff further
argued that the A-44 form was inadmissible due to the
alterations that Hennessey had made to it after Biggs had
subscribed and sworn to the information contained therein.
The commissioner denied the petition for reconsideration.
Pursuant
to General Statutes § 4-183, [13] the plaintiff appealed
from the commissioner's decision to the Superior Court,
claiming that the hearing officer had abused his discretion
in admitting the exhibit into evidence and that, even if the
exhibit had been properly admitted, there was insufficient
evidence to support the hearing officer's findings. The
trial court rejected the plaintiff's claims, concluding
that the exhibit was properly admitted because it complied
with the requirements of § 14-227b (c) and, furthermore,
that the contents of the exhibit supported the hearing
officer's findings. Specifically, the trial court stated:
‘‘In this case, the A-44 [form] contains the
April 26, 2014 electronic sworn signature under penalty of
false statement of [Biggs] as the arresting officer. The
signature box refers to the report itself and any attachments
thereto. The attached investigation report contains the April
26, 2014 electronic sworn signature of [Biggs] as the
investigator. These reports thus comply with the statute and
provided sufficient reliability to justify their admission at
the license suspension hearing in this case. See General
Statutes § 14-227b (c) (the [c]ommissioner . . . may
accept a police report under this subsection that is prepared
and transmitted as an electronic record, including electronic
signature or signatures).
‘‘That
reliability is not negated by the plaintiff's claims of
discrepancies in the date of arrest and the identity of the
motor vehicle that the plaintiff drove. The plaintiff raised
both these claims before the hearing officer, thus giving the
hearing officer an opportunity to consider them and exercise
his discretion concerning the admis-sibility of the report.
‘‘Under
the applicable abuse of discretion standard, no abuse of
discretion occurred here. . . . There is no dispute that the
motor vehicle stop took place shortly after midnight on April
24, 2014. Page one of the A-44 [form] shows a typewritten but
crossed out notation of the incident date as 04/23/2014. In
handwriting, the date of 04/24/14 is added with initials that
the commissioner concedes are those of . . . Hennessey, who .
. . administered the oath but was not the sworn, arresting
officer. The [exhibit], therefore, does contain this amount
of unsworn information, which was improper. However, pages
one and two of the A-44 [form] contain four references to the
arrest and breath tests taking place in the early morning
hours of 04/24/2014. The investigation report then makes six
references to the incident and investigation taking place on
April 24. Under these circumstances, the hearing officer
could reasonably have concluded that the initial notation of
04/23/2014 was a scrivener's error due to fact that the
arrest took place shortly after midnight and that this error
did not negate the overall reliability of the [exhibit].
‘‘The
same is true of the discrepancy with regard to the motor
vehicle in question. Page one of the A-44 [form] lists the
motor vehicle as a 2007 Audi with a Massachusetts
registration. In the Property section of the investigation
report, however, the motor vehicle is identified as a white
2006 Mercedes-Benz with Connecticut registration 344-ZBO.
[Likewise] [t]he narrative [portion] of the [investigation]
report states: A 911 caller described the vehicle as a white
Mercedes-Benz bearing CT registration 344-ZBO. I observed
this vehicle traveling northbound . . . . I activated my
overhead emergency strobe lights, sirens and wig-wag
headlights. The vehicle pulled over . . . . I never lost
sight of the vehicle from my initial observation to the stop.
Although the [exhibit] thus contain[s] conflicting evidence
concerning the motor vehicle that the plaintiff operated,
that conflict does not negate the overall reliability of the
[exhibit], which otherwise meets the statutory and regulatory
criteria. Rather, the conflict simply creates a fact or
credibility issue for the hearing officer to
resolve.'' (Citations ...